From Wikipedia, the free encyclopedia

A "No Photography" sign, commonly placed in properties
where the owner objects to or it is illegal to take photographs
(though in some jurisdictions, this is not a legal
requirement).

Photography tends to be protected by the law through copyright
and moral rights. Photography tends to be restricted by the law
through miscellaneous criminal offences. Publishing certain
photographs can be restricted by privacy law. Photography of
certain subject matter can be generally restricted in the interests
of public morality and the protection of children.

United
Kingdom

Advertisements

Legal restrictions on
photography

In general under the law of the United Kingdom one cannot
prevent photography of private property from a public place, and in
general the right to take photographs on private land upon which
permission has been obtained is similarly unrestricted. However a
landowner is permitted to impose any conditions they wish upon
entry to a property, such as forbidding or restricting photography.
Two public locations in the UK, Trafalgar Square and Parliament
Square have a specific provision against photography for
commercial purposes,[1] and
permission is needed to photograph or film in the Royal
Parks.[2]

Persistent or aggressive photography of a single individual may
come under the legal definition of harassment.[3]

It is a criminal offence (contempt) to take a photograph in any
court of any person, being a judge of the court or a juror or a
witness in or a party to any proceedings before the court, whether
civil or criminal, or to publish such a photograph. This includes
photographs taken in a court building, or the precincts of the
court.[4] Taking
a photograph in a court can be seen as a serious offence, leading
to a prison sentence.[5][6] The
prohibition on taking photographs in the precincts is vague. It was
designed to prevent the undermining of the dignity of the court,
through the exploitation of images in low brow 'picture
papers'.[7]

Photography of certain subject matter is restricted in the
United Kingdom. In particular, the Protection of Children Act
1978 restricts making child pornography or what looks like
child pornography.

It is an offence under the Counter-Terrorism Act 2008
to publish or communicate a photograph of a constable (not including PCSOs), a member of
the armed forces, or a member of the security services, which is of
a kind likely to be useful to a person committing or preparing an
act of terrorism. There is a defence of acting with a reasonable
excuse, however the onus of proof is on the defence, under section
58A of the Terrorism Act 2000. A PCSO cited Section
44 of the Terrorism Act 2000 to prevent a member of the public
photographing them. Section 44 actually concerns stop and search
powers.[8]

It is also an offence under section 58 of the Terrorism Act 2000
to take a photograph of a kind likely to be useful to a person
committing or preparing an act of terrorism, or possessing such a
photograph. There is an identical defence of reasonable excuse.
This offence (and possibly, but not necessarily the s.58A offence)
covers only a photograph as described in s.2(3)(b) of the Terrorism Act
2006. As such, it must be of a kind likely to provide practical
assistance to a person committing or preparing an act of terrorism.
Whether the photograph in question is such is a matter for a jury,
which is not required to look at the surrounding circumstances. The
photograph must contain information of such a nature as to raise a
reasonable suspicion that it was intended to be used to assist in
the preparation or commission of an act of terrorism. It must call
for an explanation. A photograph which is innocuous on its face
will not fall foul of the provision if the prosecution adduces
evidence that it was intended to be used for the purpose of
committing or preparing a terrorist act. The defence may prove a
reasonable excuse simply by showing that the photograph is
possessed for a purpose other than to assist in the commission or
preparation of an act of terrorism, even if the purpose of
possession is otherwise unlawful.[9]

Copyright

Copyright can subsist
in an original photograph, i.e. a recording of light or other
radiation on any medium on which an image is produced or from which
an image by any means be produced, and which is not part of a
film.[10]
Whilst photographs are classified as artistic works, the
subsistence of copyright does not depend on artistic merit.[10]
The owner of the copyright in the photograph is the photographer -
the person who creates it,[11] by
default.[12]
However, where a photograph is taken by an employee in the course
of employment, the first owner of the copyright is the employer,
unless there is an agreement to the contrary.[13]

Copyright which subsists in a photograph protects not merely the
photographer from direct copying of his work, but also from
indirect copying to reproduce his work, where a substantial part of
his work has been copied.

Copyright in a photograph lasts for 70 years from the end of the
year in which the photographer dies.[14] A
consequence of this lengthy period of existence of the copyright is
that many family photographs which have no market value, but
significant emotional value, remain subject to copyright, even when
the original photographer cannot be traced, has given up
photography, or died. In the absence of a licence, it will be an
infringement of copyright in the photographs to copy them.[15] As
such, scanning old family photographs to a digital file for
personal use is prima facie an infringement of copyright.

Certain photographs may not be protected by copyright. Section
171(3) of the Copyright, Designs
and Patents Act 1988 gives courts jurisdiction to refrain from
enforcing the copyright which subsists in works on the grounds of
public interest.

Immoral
works

Many cases in which this has been the case in respect of sexual
immorality can be found. For example, in Stockdale v Onwhyn, the
memoirs of a courtesan were denied protection. However, it is
notable that these cases tend to be quite old, and were decided in
the context of a relatively homogeneous, religious and conservative
society. Stockdale v Onwhyn was, for example, decided in 1826.
Similarly, in Glyn v Weston Feature Film Co (1915), the plaintiff's
sexually explicit novel was adapted into a film. The plaintiff sued
for copyright infringement, but the court refused to award an
injunction or an account of profits. The court took the view that
the book lacked literary merit.[16] The
court found that the work in question was "grossly immoral in its
essence, in its treatment, and in its tendency. Stripped of its
trappings, which are mere accident, it is nothing more nor less
than a sensual adulterous intrigue." As such, the court refused to
enforce a copyright in the work.

As such, it is open to a court to find that a photograph is
immoral, and, as such not enforce copyright which subsists in it.
However, in a modern, heterogeneous and largely secular society
which values diversity in creative works, a judge, in full
awareness of his limited capacity to assess the public interest,
may be reluctant to find that a work is sufficiently immoral as to
warrant the denial of copyright protection. Nonetheless, it is
possible to think of works which may nonetheless activate the
court's discretion in such a manner, such as child pornography or
posed images of nonconsensual torture.

The somewhat ironic practical effect of the court refusing to
enforce copyright is not to ban the work in question. Instead, it
prevents the copyright holder from preventing others from dealing
with the work in a manner which is normally restricted to the
copyright holder. As such, in Glyn, the court did not stop the film
maker from profiting from the film.

Public
interest generally

The restriction of the ability to deal with a work in certain
ways to the copyright holder can have the effect of providing a
legally sanctioned cloak to information. Hypothetically, a cult
could use the law of copyright to prevent distribution of their
texts, thus protecting the cult from mockery. The court recognises
that there is a right to freedom of expression. This has been
interpreted to involve the ability to express oneself, and also the
ability to receive information. As such, Hyde Park Residence Ltd v
Yelland (2000), the Court of Appeal accepted that the public
interest could require that copyright not be enforced, where it was
in the public interest that the information be distributed. In that
case, a security company had sued a newspaper for copyright
infringement, when the newspaper published still images of a
meeting between Diana, Princess of Wales and Dodi Al-Fayed, shortly
before the former's death. On the facts, however, the public
interest defence failed. It was found that the public interest did
not, in that particular case, necessitate the publication of the
photographs themselves. Publication of the information contained
within them would have satisfied the demands of the public
interest.

Infringement

Infringement of the copyright which subsists in a photograph can
be performed though copying the photograph. This is because the
owner of the copyright in the photograph has the exclusive right to
copy the photograph.[17] For
there to be infringement of the copyright in a photograph, there
must be copying of a substantial part of the photograph.[18] A
photograph can also be a mechanism of infringement of the copyright
which subsists in another work. For example, a photograph which
copies a substantial part of an artistic work, such as a sculpture,
painting, architectural work (building) or another photograph
(without permission) would infringe the copyright which subsists in
those works.

Because the right infringed is the exclusive right to copy,
there must be copying, as opposed to independent recreation of a
substantial part. For example, a tourist may take a photograph
which is for all intents and purposes identical to the picture on
the right. However, if the tourist's photograph happens to be of
the same scene, but not a copy of the Wikipedia photograph, the
tourist would not be infringing copyright. (The building, an
architectural work, is from the 1700s, and as such, copyright does
not subsist in it). Since the photograph is an artistic work,
irrespective of artistic merit, copyright will protect the subject
of the photograph rather than merely the medium. As such, it is
possible to infringe the copyright in a photograph through
non-literal copying. In Bauman v Fussell, for example, the Court of
Appeal held by majority that a painting which copied the
arrangement of two cocks from a photograph infringed the copyright
which subsisted in the photograph.

However, the subject matter of a photograph is not necessarily
subject to an independent copyright. For example, in the Creation
Records case,[19][20] a
photographer, attempting to create a photograph for an album cover,
set up an elaborate and artificial scene. A photographer from a
newspaper, covertly photographed the scene, and published it in the
newspaper. The court held that the newspaper photographer did not
infringe the official photographer's copyright. Copyright did not
subsist in the scene itself - it was too temporary to be a collage,
and could not be categorised as any other form of artistic
work.

The protection of photographs in this manner has been criticised
on two grounds.[21]
Firstly, it is argued that photographs should not be protected as
artistic works, but should instead be protected in a manner similar
to that of sound recordings and films. In other words, copyright
should not protect the subject matter of a photograph as a matter
of course as a consequence of a photograph being taken.[22] It is
argued that protection of photographs as artistic works is
anomalous, in that photography is ultimately a medium of
reproduction, rather than creation. As such, it is more similar to
a film, or sound recording than a painting or sculpture. Some
photographers share this view. For example, Michael Reichmann
describes photography as an art of disclosure, as opposed to an art
of inclusion.[23]
Secondly, it is argued that the protection of photographs as
artistic works leads to bizarre results.[21]
Subject matter is protected irrespective of the artistic merit of a
photograph. The subject matter of a photograph is protected even
when it is not deserving of protection. For example, it is possible
that Vogue Magazine would be infringing copyright if they, inspired
by a picture taken by a drunk boyfriend of his girlfriend posing
provocatively on a motorcycle, attempted to recreate the
photograph. Similarly, it is possible that a famous wildlife
photographer, inspired by a cheap snapshot of cheetah at the zoo,
on Flikr, would be infringing copyright if he went exploring the
Okovango Delta in search of a cheetah in a similar pose. For
copyright to subsist in photographs as artistic works, the
photographs must be original, since the English test for
originality is based on skill, labour and judgement.[21]
That said, it is possible that the threshold of originality is very
low. For example, in Walter v Lane, reporters who transcribed a
speech were held to be authors of the transcription, and owners of
a copyright which subsisted in it. Essentially, by this, Arnold is
arguing that whilst the subject matter of some photographs may
deserve protection, it is inappropriate for the law the presume
that the subject matter of all photographs is deserving of
protection.

It is possible to say with a high degree of confidence that
photographs of three-dimensional objects, including artistic works,
will be treated by a court as themselves original artistic works,
and as such, will be subject to copyright.[24] It is
likely that a photograph (including a scan - digital scanning
counts as photography for the purposes of the Copyright Designs and
Patents Act 1988) of a two dimensional artistic work, such as
another photograph or a painting will also be subject to copyright
if a significant amount of skill, labour and judgement went into
its creation.[25] As
such, the photograph above of the Radcliffe Camera would be subject
to copyright. Similarly, based on the latter conclusion, it is
likely, for example, that if Wikipedia hosted a scan of, for
example, the United States Constitution, on a UK server, and the
scan required skill, labour and judgement, in handling the document
and processing the digital file, Wikipedia would, if it did not
have a licence, be infringing the scanner's copyright.

Photography and privacy

A right to privacy exists in the UK law, as a consequence of the
incorporation of the European Convention on Human Rights into
domestic law through the Human Rights Act 1998. This can
result in restrictions on the publication of photography.[26][27][28][29][30]

Whether this right is caused by horizontal effect of the Human Rights
Act 1998 or is judicially created is a matter of some
controversy.[31] The
right to privacy is protected by Article 8 of the convention. In
the context of photography, it stands at odds to the Article 10
right of freedom of expression. As such, courts will consider the
public interest in balancing the rights through the legal test of
proportionality.[32]

A very limited statutory right to privacy exists in the
Copyright Designs and Patents Act 1988. This right is held, for
example, by someone who hires a photographer to photograph their
wedding. The commissioner[33],
irrespective of any copyright which he does or does not hold in the
photograph[33]
of a photograph which was commissioned for private and domestic
purposes, where copyright subsists in the photograph, has the right
not to have copies of the work issued to the public,[34] the
work exhibited in public[35] or
the work communicated to the public.[36]
However, this right will not be infringed if the rightholder gives
permission. It will not be infringed if the photograph is
incidentally included in an artistic work, film, or broadcast.[37]

United
States

Local, state, and national laws may exist pertaining to
photographing or videotaping. Laws that are present may vary from
one jurisdiction to the next, and may be stricter in some places
and more lenient in others, so it is important to know the laws
present in one's location. Typical laws in the United States are as
follows:

Public
property

It is generally legal to photograph or videotape anything and
anyone on any public property, with some exceptions[38].

Taking a photograph while on an airplane is banned in many
places, and many mass transit systems prohibit taking photographs
or videos while on board buses or trains or inside of stations. (It
is unknown whether such prohibitions are legal, due to transit
systems in the United States often being considered public places.)
Photography is against Port Authority rules in New York and New
Jersey's PATH Train system.[39]
Photography and videography are also prohibited in the U.S.
Capitol, in courthouses, and in government buildings housing
classified information. Bringing a camera phone into one of these
buildings is not permitted either.

Private
property

Photography may be prohibited and/or restricted within an area
of property by the property owner[38].
At the same time, a property owner generally cannot restrict the
photographing of their property by individuals who are not located
within the bounds of the property[38].

In order to film on someone else's property, permission must be
received from the owner.

Photographing of privately-owned property that is generally
open to the public (i.e. retail) is permitted unless explicitly
prohibited by posted signs.

Some jurisdictions have laws regarding filming while in a
hospital or health care facility. Where permitted, such filming may
be useful in gathering evidence in cases of abuse, neglect, or
malpractice.

Privacy
issues

Photographing private property from within the public domain is
legal, with the exception of an area that is generally regarded as
private, such as a bedroom, bathroom, or hotel room[38].
In some states, there is no definition of "private," in which case
there is a general expectation of privacy. Should
the subjects not attempt to conceal their private affairs, their
actions immediately become public to a photographer using an
average lens or video camera.

Many places have laws prohibiting photographing private areas
under a person's clothing without that person's permission. This
also applies to any filming of another within a public restroom or
locker room. Some jurisdictions have completely banned the use of a
camera phone within a restroom or locker room in order to prevent
this. It is expected that all 50 states will eventually have laws
pertaining to surreptitiously filming a person's genitalia. The
United States enacted the Video Voyeurism Prevention Act of 2004 to
punish those who intentionally capture an individual's private
areas without consent, when the person knew the subject had an
expectation of privacy.[40]
Additionally, state
laws have been passed addressing the issue as well.[41]

Commercial photography

In certain locations, such as California state parks, commercial
photography is subject to insurance requirements and usually also
requires a permit[42].
In places such as the city of Hermosa Beach in
California, commercial photography on both public property and
private property is subject to permit regulations and possibly also
insurance requirements[43].

At the Chesapeake
and Ohio Canal National Historical Park, commercial photography
requires a permit under certain circumstances[44
]. For photography that involves the advertising of a
commercial product or service, or photography that involves sets or props
or models, a
permit is required[44
]. In addition, if the photography has aspects
that may be disruptive to others, such as additional equipment or a
significant number of personnel or the use of public areas for more
than four hours, it is necessary to obtain a permit[44
]. If a photographer or related personnel need to
access an area during a time when the area is normally closed, or
if access to a restricted area is involved, the photography
requires a permit[44
]. For commercial portrait photographers, there is a
streamlined process for photography permits[44
] In the case of National Park system units, commercial filming
and/or audio recording requires a permit and
liability insurance[45].
Still
photography is sometimes subject to the permit and insurance
requirements[45].

If a photograph shows private property in such a manner that a
viewer of the photograph can identify the owner of the property,
the ASMP (American Society of Media Photographers, Inc.) recommends
that a property release should be used if the photograph is to be
used for advertising and/or commercial purposes.[46]
According to the ASMP, a property release may be a requirement in
such a situation[46].

Other
issues

Photographing accident scenes and law enforcement activities is
usually legal[38].
At the same time, one must not hinder the operations of law
enforcement, medical, emergency, or security personnel by
filming.

Any filming with the intent of doing unlawful harm against a
subject may be a violation of the law in itself.

Other
countries

Reactions to photography differ between societies, and even
where restrictions on photography are not covered by statute, code,
or judicial precedent, there may be resistance to the taking of
photographs by individuals or groups. The breach of the social
norms can result in opprobrium, coercion, danger, and violence, and
as such should be noted and respected.

Sudan

Travelers who wish to take any photographs must obtain a
photography permit from the Government of Sudan, Ministry of
Interior, Department of Aliens.[47]

India

A permit is required for aerial photography in India, which
normally takes over a month to acquire.[48]
Regulations apply to land-based photography for certain
locations.[48]

^
"The episode itself is a chance meeting at a Lucerne hotel between
a beautiful lady of uncertain age and mysterious origin and the
young Englishman sent by his parents on the grand tour to cure him
of an unsuitable attachment at home. The meeting developed into a
liaison which lasted for three weeks, after which the lady returned
to the shadowy realm from which she had emerged and of which she
was, as it happened, the queen. There, having given birth to a son
of whom the young Englishman was the father, she was murdered by
her husband, the dissolute king of the country. He in turn was
assassinated by a faithful attendant of the queen's, leaving the
child, the image of his handsome English father, to succeed to the
throne. In all its essentials the so-called episode is as hackneyed
and commonplace a story as could well be conceived. If it is to be
distinguished at all from innumerable anticipations in erotic
literature, the distinction is to be found in the accessories of
the tale. Mystery surrounds the lady. Of a loveliness unaffected by
the passage of time, she is said to be polished, blasée, soignée.
Even in a Swiss country hotel, but notably at Lucerne and Venice, she is pervaded by a luxury as sybaritic
as it is incongruous: no wine can pass her lips which is not either
of the deepest red or the richest gold; the roses she wears are
matched in colour only by the red of her lips; the fruit with which
she toys has to be out of season in order that it may be fabulously
expensive. Although attended only by an elderly dignified male
servant, the lady apparently carries about with her to Lucerne and
Venice - if one may omit so-called mountain excursions to the Right
and the Burgenstock - baggage sufficient to fill an ordinary train;
it is no extraordinary achievement for her dignified attendant in
the space of a week-end to go from Lucerne to Venice, engage a
palace on the Grand
Canal, supplied with the essential convenience of a side door,
and have it equipped with a retinue of Italian servants and, it
would seem, an orchestra from Paris, in time to receive the lady on
the following Monday travelling from Lucerne with all her baggage
and apparently quite unaccompanied. These exaggerated incidents or
others like them are of course quite absurd enough to be destitute
of novelty in literature of the kind; but if the particular cachet
of the plaintiff's novel is not to be found in this setting, then,
so far as I can see, it has no cachet at all. At the best, the
plaintiff has chosen a hackneyed theme for her episode, and her
privilege as an authoress must be strictly confined to the method
of treating it which she has adopted." Glyn v. Weston Feature Film
Company. Chancery Division; Ch D

^
Illustrated in the Norowzian v Arks case. In
this case, it was noted that the copyright in a film would be
infringed only though photographic copying of a substantial part,
as opposed to mere recreation of the film. It was, however, also
held that that a film could be protected by copyright both as a
film and as a dramatic work, provided, of course, that it fulfilled
the requirements of protection of a dramatic work, on the facts.
The claimant, was eventually unsuccessful. It was held that whilst
the film in question in fact had copyright subsist in it both as a
film and as a dramatic work, this copyright was not infringed,
because there was no copying of a substantial part.